Companies routinely offer discounts or other incentives to increase sales.  Free offer advertising campaigns are a common and often good method to drive sales.  Advertisers utilizing free offers must do so carefully.  Free offers must not be deceptive, and the component of the offer designated as “free” must actually be free.  Stated differently, federal and state laws rely on the proposition that “free” means free, meaning that an advertiser may not directly and immediately recover the cost of the free offering from consumers.

The issue of prospective employers viewing an applicant’s Facebook account is not new.  Employers and privacy advocates have been debating the permissibility of such conduct for years.  Employers want to know the character of the applicant before investing in training a person or giving a person access to sensitive data or vulnerable individuals.  With Facebook, employers were concerned about discrimination claims.  Facebook reveals information that cannot be requested on an application, such as race, religion, parenthood, and in some locations sexual preference.  Accessing Facebook could be used to allege a discriminatory intent in the decision not to hire the applicant.  Privacy advocates, while objecting to this practice, had to concede that the applicant voluntarily made this information public by posting it on Facebook.

The Federal Trade Commission (“FTC”) announced recently a settlement with a company that used false “free” product offers for weight-loss pills, teeth whiteners, health supplements, a work-at-home scheme, access to government grants, free credit reports and penny auctions, and then charged those consumers monthly recurring fees for products the consumers did agree to purchase.  Federal Trade Commission v. Willms, et al., Case No. 2:11-cv-00828 (W.D. Wash. Feb. 23, 2012).  Unscrupulous and dishonest marketers have given negative option offers a bad name.  The fact remains — when used appropriately and in compliance with the law, negative option offers can be an effective marketing strategy.  Consumers receive better deals with uninterrupted services (and often a simplified renewal process), while marketers get to reduce costs associated with the renewal of services and continued customers.  However, marketers employing negative option marketing strategies need to comply with the law.